Citation Nr: 21030773 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-20 893 DATE: May 19, 2021 REMANDED Issue of entitlement to an increased rating for status post anterior diskectomy and anterior fusion C5-6 and C6-7 with posterior laminectomy C5-6 (hereinafter referred to as a "cervical spine disability"), currently rated as 30 percent disabling, is remanded. Issue of entitlement to an increased rating for left upper extremity radiculopathy of the lower, middle, and upper radicular group nerves associated with cervical spine disability (previously rated as intervertebral disc syndrome (IVDS) left upper extremity with circumflex nerve involvement) (hereinafter referred to as "LUE radiculopathy"), currently rated as 10 percent disabling prior to November 8, 2018, and 30 percent rating thereafter, is remanded. Issue of entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to April 30, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1975 to April 1979 and November 1985 to March 1991. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2012 rating decision issued by the Department of Veterans Affairs (VA). See January 2013 Notice of Disagreement (NOD); May 2014 Statement of the Case (SOC); May 2014 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a June 2017 hearing. See June 2017 Hearing transcript. In January 2018, the Board remand the claims for further development, including obtaining VA treatment records dated from February 1998 to September 2004 and from February 2013 to present. January 2018 Board decision. On remand, the agency of original jurisdiction (AOJ) granted an increased rating of 30 percent for the Veteran's LUE radiculopathy, effective November 8, 2018. July 2019 Rating decision. In February 2020, the Board granted a 30 percent rating, but no higher, for the Veteran's cervical spine disability. February 2020 Board decision. The Board denied entitlement to an increased rating for the Veteran's LUE radiculopathy. The Veteran appealed the February 2020 Board decision to the Court of Appeals for Veterans Claims (CAVC) and, through a Joint Motion for Partial Remand, CAVC remand the claims back to the Board for further development of the evidence and reasons and bases for its decision. December 2020 Board decision. The claims are now back before the Board. 1. Issue of entitlement to an increased rating cervical spine disability, currently rated as 30 percent disabling, is remanded. 2. Issue of entitlement to an increased rating for LUE radiculopathy, currently rated as 10 percent disabling prior to November 8, 2018, and 30 percent rating thereafter, is remanded. 3. Issue of entitlement to TDIU for the period prior to April 30, 2020, is remanded. The December 2020 CAVC decision remanded the claims for the Board to determine whether there has been substantial compliance with the January 2018 Board decision remand directives. Specifically, CAVC noted that the January 2018 Board decision directed that the VA treatment records dated from February 1998 to September 2004 and from February 2013 to present be obtained. Id. CAVC found that it was unclear from the claims file if VA attempted to obtain these records. A review of the claims files shows that, on remand, VA treatment records dated from September 2004 to May 2019 were obtained. As noted in the December 2020 CAVC decision, there is also one treatment record dated in April 1998. There is no documented evidence of the Regional Office's attempt to obtain the records as directed by the Board, so it is unclear whether there was substantial compliance with the January 2018 Board decision remand directive to develop the evidence. The Board, thus, finds that a remand is warranted. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for the Veteran's cervical spine disability and LUE radiculopathy, and provide authorizations for VA to obtain records of any such private treatment. In particular, the Regional Office should attempt to obtain any VA treatment records dated from February 1998 to September 2004 and from February 2013 to present, that are not already part of the claims file and provide documentation if no additional records are obtained. (Continued on the next page) 2. Readjudicate. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.